Canadian HR Reporter

CANADIAN HR REPORTER JULY 2018 6 NEWS sort out the issue, Tizzard ended up applying for another position at Valard, that of an assembler. Ultimately, he was not accept- ed for employment, despite his physician saying the impairment from his evening consumption of medical marijuana only lasted about four hours, so it would not impact him reporting to work the next morning. As a result, his union — the International Brotherhood of Electrical Workers (IBEW), Local 1620 — filed a grievance claiming Valard wrongfully refused to pro- vide accommodation arising from Tizzard's disability. It said he was fit for employment even though he was using medical cannabis in the evenings. But Valard said the two posi- tions involved were safety-sen- sitive ones, so it was essential to determine a person's ability to work without impairment, and the company had an obligation under legislation to all workers to ensure a safe workplace. Valard also claimed it met its obligation to individually assess Tizzard's case to the extent pos- sible because of the limited in- formation from his physician. In addition, the safety risks added to the workplace by Tizzard's use of medical cannabis brought Valard to the point of undue hardship. At the arbitration in April, 13 witnesses were called to provide evidence, including medical phy- sicians and a pharmacologist. Ar- bitrator John Roil also referred to three "guidance" documents — a 2013 document from Health Can- ada for health-care professionals, a 2014 guidance from the College of Family Physicians of Canada on authorizing dried cannabis for chronic pain, and 2014 guidelines from the College of Physicians and Surgeons of Newfoundland and Labrador on marijuana for medical purposes. In the end, Roil concluded the regular use of medically autho- rized cannabis products can cause impairment of a worker in a work- place, and the length of cognitive impairment can exceed four hours after ingestion — sometimes up to 24 hours. In addition, a general practising physician is not in a position to ad- equately determine the daily safety issues in a hazardous workplace. "Specialized training in un- derstanding workplace hazards is necessary to fully understand the interaction between cannabis impairment and appropriate work restrictions in a given fact situa- tion," said Roil. Newfoundland and Labrador also lack readily available testing resources "to allow an employer to adequately and accurately measure impairment rising from cannabis use on a daily or other regular basis," he said, and, more importantly, "there is currently no effective or practical means to ac- curately measure impairment in the workplace from evening can- nabis use." Once Valard had more details about Tizzard's cannabis use, it was reasonable to conclude "there was an increased risk of harm from residual impairment and that no reasonable method to lessen that risk was available due to a lack of accurate measurement protocols," said Roil, finding no evidence of bad faith. "e inabil- ity to measure and manage that risk of harm constitutes undue hardship for the employer." While Valard's accommodation process was not perfect, it reached the correct outcome, said Roil. "It is easy to have sympathy for the plight of (Tizzard) but he has chosen a therapy which, while effective in term of his pain re- lief, requires more research and knowledge than is currently possible in order to ensure an employer's ability to determine impairment in a construction environment." Measuring impairment It is a very significant and note- worthy decision, not only in ad- dressing what can be appropri- ately considered a safety-sensitive position, but in dealing with the is- sue of accommodation and medi- cal cannabis for those positions, said Brian Johnston, a partner at Stewart McKelvey in Halifax. "What has clearly happened is that there is an increasing knowl- edge about the lingering, impair- ing impacts, otherwise known as the residual impairment, of marijuana, including medical cannabis, and employers who are becoming better informed about the residual impairment associat- ed with cannabis are now looking at whether or how well that risk fits with employment in safety- sensitive positions." The arbitrator was satisfied that Valard went through an ac- commodating process, including an individualized assessment, and there was undue hardship, he said. "Accordingly, the employer had done nothing wrong by deciding to not offer employment to this person who was seeking a labour job, otherwise known in this case as a utility worker job or an assem- bler job, both of which he was sat- isfied in the circumstances were safety-sensitive positions." e general view is that it is impossible to determine impair- ment in relation to marijuana, said Johnston, "short of putting the person in a laboratory situa- tion and testing them." "(Roil) was saying essentially because there is no… viable, cur- rent test for impairment, there- fore it is too much of a risk for the employer to accept someone who we know will suffer some residual impairment for some period of time as a result of cannabis con- sumption," he said. "ere is, in employment, al- ways some safety health risk, but in this case, the arbitrator was sat- isfied the risk was too substantial for the employer to assume." is case is significant in rec- ognizing the limitations on the current testing technology, and the impairment effects of canna- bis, said Tara Erskine, partner at Mathews Dinsdale in Halifax. "Also, it recognized that the fact that a person does not believe they are impaired is not determinative because they may feel they're not impaired but they still may not function, respond or react normally, which is important of course in a safety-sensitive job," she said. "It's not like alcohol or cocaine, where there's a narrow window and if you test someone for alcohol, you know when they've consumed alcohol. It's not the same for cannabis because it stays in your system 28 days or longer, so it's a real problem and its only going to get more significant when recreational use of cannabis is legalized." Roil was convinced by the evi- dence that there is no consensus when it comes to testing for im- pairment, said Hettiarachchi. "What the arbitrator noted was that, depending on the THC (tet- rahydrocannabinol) amount, im- pairment could last for up to 24 hours or even more than 24 hours after the last use so, unlike alcohol or other drugs, there's no scientifi- cally proven method to be able to assess a person's current impair- ment from cannabis use." It serves as a caution to employ- ers, she said. "Just because somebody brings a prescription that says, 'I'm a medical cannabis user,' you cannot just take it at face value and stop there, you need to actually get fur- ther information to satisfy your- self as to: how much cannabis is being used, what are the require- ments, what are the methods of using the cannabis, is it going to be ingested, is it going to be smoked, etcetera, because the employer would need to find all that out in order to accommodate the person if it is a non-safety position." No consensus when it comes to testing: Arbitrator MARIJUANA < pg. 1 "Just because somebody brings a prescription that says, 'I'm a medical cannabis user,' you cannot just take it at face value and stop there." The recent reversal of pub- lic holiday pay rules — in which the Ontario Liberal government reverted back to previous pay standards until further study was completed — serves as an exam- ple of why such change could be necessary, said Rossi. "We have to look at that — the sick days, the holiday provisions — to make sure that we can rea- sonably absorb these costs." e potential of government policy change or reversal is sim- ply "the nature of the beast" when it comes to human resources, said Allinson. "Our members… are used to it. ey're highly adaptable. But it's not the best situation, especially when you have something just as fresh as (Bill) 148 and Bill 3 on pay transparency getting passed." Advice for HR HRPA will monitor the Ontario government's activity and lobby that any legislative changes af- fecting the workplace are both practical and easy to implement, said Allinson. If necessary, HR practitioners should send along ideas and feed- back on Bill 148 to the Ontario Chamber of Commerce to lobby the new government for change, said Rossi. "e businesses themselves are the experts," he said. "ey're liv- ing the reality and we need to hear from them." More broadly, the election of the PC party by a large majority of Ontario voters should remind HR professionals that citizens and workers find it difficult to rally be- hind leaders who flaunt their in- telligence and power, said Martin. "It's not restricted to one party or one level of government, but it's a characteristic people don't like in their politicians," he said. "e hard fact of the matter is, this is about people. You've got to treat them well... at's the differ- ence between a successful organi- zation and an unsuccessful one." Legislative changes 'nature of the beast' PC PARTY < pg. 2

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